PDF U.S. Citizenship and Immigration Services

U.S. Department of Homeland Security 20 Mass. Ave., N.W., Rm. A3042 Washington, DC 20529

U.S. Citizenship and Immigration Services

FILE:

'ICE CENTER

Date: . _,, , c

? $ ipt.

:,a,

PETITION: Immigrant petition for Alien Worker as a Skilled 1 orker or Professional pursuant to section

203(b)(3) of the Immigration and Nationality Act, U.S.C. 9 1153(b)(3)

ON BEHALF OF PETITIONER:

INSTRUCTIONS: This is the decision of the Administrative Appeals Office in your lse. All documents have been returned to the office that originally decided your case. Any further inquiry m ;t be made to that office.

\ Administrative Appeals Office

EAC 02 207 53006 Page 2

b DISCUSSION: The preference visa petition was denied by the Director, Vermont Service Center, and is

now before the Administrative Appeals Office (AAO) on appeal. e appeal will be dismissed. I

1 The petitioner is a restaurant. It seeks to employ the beneficidry permanently in the United States as a

specialty cook. As required by statute, a Form ETA 750, Appli ation for Alien Employment Certification approved by the Department of Labor, accompanied the petition. The director determined that the petitioner had not established that it had the continuing ability to pay the b neficiary the proffered wage beginning on the priority date of the visa petition and denied the petition accordi gly.

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On appeal, counsel submits a brief and additional evidence.

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Section 203(b)(3)(A)(i) of the Immigration and Nationality AC/~(the Act), 8 U.S.C. 1153(b)(3)(A)(i).

provides for the granting of preference classification to qualified

who are capable, at the time of

petitioning for classification under this paragraph, of performing

(requiring at least two years

training or experience), not of a temporary nature, for which quali

not available in the United

States.

". Section 203(b)(3)(A)(ii) of the Immigration and Nationality A (the Act), 8 U.S.C. $ 1153(b)(3)(A)(ii),

provides for the granting of preference classification to qualified i migrants who hold baccalaureate degrees

and are members of the professions.

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The regulation at 8 C.F.R. $ 204.5(g)(2) states, in pertinent part:

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Ability of prospective employer to pay wage. Any

filed by or for an employment-

! based immigrant which requires an offer of employment ust be accompanied by evidence

that the prospective United States employer has the abili to pay the proffered wage. The

petitioner must demonstrate this ability at the time th priority date is established artd

continuing until the beneficiary obtains lawful permanent esidence. Evidence of this ability

shall be in the form of copies of annual reports, feder tax returns, or audited financial

statements.

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i The petitioner must demonstrate the continuing ability to pay th proffered wage beginning on the priority

date, the day the Form ETA 750 was accepted for processing by a y office within the employment system of

the Department of Labor. See 8 CFR 8 204.5(d). Here, the Fo ETA 750 was accepted for processing on

April 9, 2001. The proffered wage as stated on the Form ETA 50 is $1 1.87 per hour, which amounts to

$24,689.60 annually. On the Form ETA 750B, signed by the be eficiary, the beneficiary did noit claim to

have worked for the petitioner.

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1 On the petition, the petitioner claimed to have been established on anuary 1, 1994, and to have a gross annual

income of $563,458. The petitioner did not disclose how many employees it employs. In support of the

petition, the petitioner submitted:

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AFormG-28;

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A certified Form ETA 750, labor certification application1i

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A letter of recommendation from a former employer of thk beneficiary; and

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The petitioner's Form 1120s tax return for 2001.

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EAC 02 207 53006 Page 3

Because the director deemed the evidence submitted ability to pay the proffered wage beginning on the additional evidence pertinent to that ability. The

to demonstrate the petitioner's continuing , the director on June 6, 2003, requested ly requested documentary proof of:

The names of all other aliens for whom the petitioner ha1 petitioned;

The number of the petitioner's employees on the priorid date;

The petitioner's complete 2002 federal income tax retud;

i All of the petitioner's Form W-2's, Form W-3's, Form 1 99's and Form 1096's (Annual Summary

and Transmittal of U.S. Information Returns) issued for ages paid in 2001 and 2002; ancl

The 12 monthly bank statements for 2001 for the peti1 ioner's business bank accounts reflecting

account balances.

While counsel did not submit the requested bank statements, he did submit:

A July 15, 2003 letter from the petitioner's sole shareh lder asserting that retained eammgs in 200 1 ($70,297) and 2002 ($54,122) would be available pay the proffered wage;

The petitioner's 2002 Form 1120s tax return;

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All of the companies issued Form W-2s and Form W-34 for 2001 ("the Petitioner emp1o:yed 14

workers in 200 1") and 2002; and

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A 2002 Form W-2, his year-to-date pay stubs, the ~ o n 1n-140 approval notice, and the Form I485 application receipt for the "only other worker" the p/titioner has sponsored.

4 The tax returns reflect the following information for the following ears:

Net income Current Assets Current Liabilities

Net current assets

$12,000 $16,995

$6,323 $10,672

$10,366 $8,587 $7,586 $1,001

The director determined that the evidence submitted did not estadlish that the petitioner had the continuing

ability to pay the proffered wage beginning on the priority

September 22, 2003, denied the

petition. The director found that the petitioner's 2001 net

depreciation fell $3,786.60 short of the

proffered wage. He further stated, "[Ylour 2001 liabilities

more than your assets."

1/1 On appeal, counsel submits text on the topic of retained earnings. her brief he asserts that the director erred

by:

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Miscalculating the petitioner's current assets available to the proffered wage;

Failing to differentiate between actual expenses and returns; and

losses" on the petitioner's. tax

= Ignoring the sole shareholder's stated willingness to cover the proffered wage with the petitioner's retained earnings.

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1 In determining the petitioner's ability to pay the proffered wa e during a given period, Citizenship and

Immigration Services (CIS) will first examine whether the peti ioner employed and paid the beneficiary

I during that period. If the petitioner establishes by documentary e dence that it employed the beneficiary at a

salary equal to or greater than the proffered wage, the evidence ill be considered prima facie proof of the petitioner's ability to pay the proffered wage. In the instant ca e, the petitioner did not establ~shthat it employed and paid the beneficiary the full proffered wage in either 2001 or 2002.

1 If the petitioner does not establish that it employed and paid the eneficiary an amount at least equal to the

proffered wage during that period, CIS will next examine the net income figure reflected on the petitioner's federal income tax return, without consideration of depreciatio or other expenses. Reliance on federal income tax returns as a basis for determining a petitioner's a ility to pay the proffered wage is well

dl established by judicial precedent. Eiutos Restazirant Corp. v. Suva' 632 F . Supp. 1049, 1054 (S.D.K..Y. 1986)

(citing Tongatapu Woodcraft Hawaii, Ltd. v. Fekd~nun,736 F.2 1305 (9th Cir. 1984); see also Clii-Feng Cl~angv. Tlzornburgl~7, 19 F. Supp. 532 (N.D. Texas 1989);K.C.P Food Co., Inc. v. Sava, 623 F. Supp. 1080 (S.D.N.Y. 1985); Ubeda v. Palmer, 539 F. Supp. 647 (N.D. 111. 1982), uff'd, 703 F.2d 571 (7th C'ir. 1983). Showing that the petitioner's gross receipts exceeded the proffered wage is insufficient. In K.C.P. Food Co., Inc. v. Suva, 623 F. Supp. at 1084, the court held that the Immigr ion and Naturalization Service, now CIS, had properly relied on the petitioner's net income figure, as stat on the petitioner's corporate income tax returns, rather than the petitioner's gross income. The court s)ecifically rejected the argument that the Service should have considered income before expenses were paid rather than net income.

Nevertheless, the petitioner's net income is not the only statistic tk.t can be used to demonstrate a petitioner's ability to pay a proffered wage. If the net income the petitioner demonstrates it had available during that period, if any, added to the wages paid to the beneficiary during the period, if any, do not equal the amount of the proffered wage or more, CIS will review the petitioner's assets.

We reject, however, counsel's argument that the petitioner's total assets should have been considered in the determination of the ability to pay the proffered wage. The petitioner's total assets include depreciable assets that the petitioner uses in its business. Those depreciable assets will not be converted to cash during the ordinary course of business and will not, therefore, become furids available to pay the proffered wage. Further, the petitioner's total assets must be balanced by the petit oner's liabilities. Otherwise, they cannot properly be considered in the determination of the petitioner's abil-ty to pay the proffered wage. Ralther, CIS will consider net current assets as an alternative method of demonstrating the ability to pay the proffered wage.

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Net current assets are the difference between the petitioner's corporation's year-end current assets are shown on Schedule L, li liabilities are shown on lines 16(d) through 18(d). If a to or greater than the proffered wage, the petitioner is those net current assets. The petitioner's net current however, were $10,672 in 2001, and $1001 in 2002.

rrent assets and current liabilities.' A s l(d) through 6(d). Its year-end current

end-of-year net current assets are equal able to pay the proffered wage out of years in question, 2001 and 2002,

I According to Barron's Dictionary of Accounting Terms having (in most cases) a life of one year or less, such as expenses. "Current liabilities" are obligations payable (in payable, short-term notes payable, and accrued expenses (such

assets" consist of items securities, inventory and prepaid within one year, such accounts

Id. at 118.

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Counsel correctly noted the director made a mistake in calcula ng the petitioner's liabilities for 2001 as $21,702. As noted above, the calculation should only consider cu ent liabilities, in this case $6,323 for 2001. By adding in the $32,374, reported on Line 2 1 of Schedule L as " ther liabilities," the director has overstated the amount of income the petitioner would need to establish its ~ilityto pay the proffered wage for 2001. Instead, the petitioner's $10,672 in net current assets for 2001 neans that the petitioner's current assets totaled $10,672 above its current liabilities.

Such a net current asset analysis nonetheless still leaves a $14,0 7.60 deficit in establishing the petitioner's ability to pay the proffered wage in 2001. The same analysis resu. ;in a $23,688.60 deficit for 2002.

Counsel, relying upon the sole shareholder's July 15, 2003 1 ter, asserts that the petitioner'; retained earnings, as reported on Schedule L of the 2001 and 2002 Form 120s tax returns. should suffice to enable the petitioner to pay the proffered wage.

In addition, counsel's assertion with regard to the definition, anc hence, the use of retained earnings is not persuasive. As noted above, net current assets, as a measure ? liquidity, are examined as rellected on Schedule L of the petitioner's tax return. Net current assets inclu e only cash or cash equivalents that would reasonably be available to pay the proffered wage during the yee covered by the Schedule L balance sheet. They do not take into account the longer-term resources that arc reflected in the petitioner's "total assets." Similarly, they only take into account the petitioner's current liab ities as set forth on Schedule L. These do not include retained earnings. Generally Schedule L is a balance s :et that subtracts an entity's total liabilities from its assets. The "balance" (if any) remaining is considere the value of the entity as expressed in shareholder equity. Shareholder equity can include such non-ca: items as goodwill, equity in non-current assets, etc. Retained earnings fall under the heading of sharehc ier's equity on Schedule L and normally represent the non-cash value of the company's assets. As the defi ~tionsprovided by counsel on appeal make clear, retained earnings represent funds reinvested into the currei business or used to pay off debts. Thus, retained earnings do not represent current assets that can be liqu ied during the course of normal business, but rather the net income over the life of the corporation, and the ( mer's equity, minus distributions.

The petitioner has thus not demonstrated that it paid any wages tc :he beneficiary during 2001 and :!002. The petitioner has not demonstrated that any other funds were availab : to pay the proffered wage. The petitioner has not, therefore, shown the ability to pay the proffered wage dur ~gthe salient portions of 2001 anti 2002.

The petitioner failed to submit evidence sufficient to demonstrat~ that it had the ability to pay the proffered wage. Therefore, the petitioner has not established that it had the ~ntinuingability to pay the proffered wage beginning on the priority date.

The burden of proof in these proceedings rests solely with the p itioner. Section 291 of the Act, 8 U.S.C. ? 1361. The petitioner has not metthat burden.

ORDER: The appeal is dismissed.

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